Therapists in Child Custody Cases

By
Evan Samuelson
|February 03, 2014

There are a number of different roles for therapists in child custody cases, and if you're not careful, those roles can get blurred, to the detriment of your case and/or the welfare of your children. Recently on one of my cases, the judge ordered that the parties' minor children go to therapy. A particular therapist was chosen for this purpose. It is important to note that one of the most important ethical rules for a therapist, who is actually providing therapy, is to maintain the confidentiality of the patient(s), in this case, the children. What the children tell the therapist in the course of therapy is confidential, and with a couple of exceptions, the therapist is not supposed to disclose what the children tell him to other people. This is called the psychotherapist patient privilege.

However, this therapist's role became blurred, and he began making recommendations to the family law judge as to the custody schedule that he thought was in the children's best interests. A significant portion of his recommendation was based upon what was supposed to be confidential communications between him and his patients, i.e., the children. In so doing, it is my opinion that an ethical line was crossed. You might think that there is nothing wrong with this since he is trying to help the judge make a child custody schedule that is in the children's best interests. However, the children are supposed to trust him with their feelings and their 'secrets', and his job is to help them cope with whatever issues they were dealing with. What appears to have occurred in this case is that the therapist developed his own agenda. He listened to the complaints of the one parent who was mostly taking the children to therapy. Naturally, these complaints were about the other parent.

The therapist began to use the therapy sessions with the children not to necessarily help them by providing therapy, but to gather evidence for the complaining parent against the other parent for an upcoming custody battle. Meanwhile, the children felt ignored because when they started to talk about things they wanted to talk about, the therapist steered them away from such topics so he could address the issues raised by the complaining parent. The therapist was then subpoenaed to trial by the complaining parent. The therapist testified, among other things, that the other parent wasn't making sure the children showered or bathed enough. And when you think about it, it's pretty obvious that the therapy sessions had been corrupted. What child actually complains about not having to shower or bathe? Who really takes children to therapy so they can discuss hygiene? The therapist had become the complaining parent's agent, using the children's therapy sessions as ammunition against the other parent.

This is not to say that therapists can never make child custody recommendations to the Family Court. They can. However, they first need to be appointed by the family court judge as a custody evaluator, or assigned by the judge as a child custody recommending counselor (or CCRC). When appointed as an evaluator or CCRC, it is understood by everyone at the beginning that the psychotherapist-patient privilege is not fully in effect, and that the therapist will not be providing therapy, but instead will be making a custody recommendation to the family law judge based in part upon conversations the therapist has had with the parents and the children. His work will be forensic, not therapeutic. Additionally, rules apply to maintain fairness. The evaluator/CCRC can't receive or review documents from one parent without that parent serving copies of those documents on the other parent first. Each county has its own set of rules regarding the submission of documents to the evaluator/CCRC. The evaluator/CCRC also lists the foundation for his/her recommendations. In other words, he states who he has spoken to, and for how long. If he has reviewed documents which he considered in coming to his opinion on custody, he lists the documents that he has reviewed. This way, the family law judge can see whether or not the evaluator/CCRC was fair, or one-sided.

Going back to the example described above, the therapist who was only supposed to provide therapy, but made recommendations instead, violated the rules of fairness as well. He should not have been making recommendations to the Family Court to begin with, but to make matters worse, he spent more time talking to one parent than the other, or, on certain occasions, did not talk to the other parent at all. He accepted and reviewed documents from one parent without making sure the other parent received copies of those documents. If the therapist was going to spend one hour with one parent, listening to his/her concerns regarding child custody, then he should have offered to spend one hour with the other parent. This did not occur, giving rise to at least an appearance of bias, if not actual bias.

Family law judges faced with making decisions regarding child custody greatly value the opinions of psychological experts, to what extent depends on the particular family law judge. So, if you're litigating child custody, just make sure you know what's going on if a therapist gets involved.

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